The Coronavirus and the Rise of the States

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Patriots Masks Assist

Massachusetts Gov. Charlie Baker, fearful of federal confiscation, contacted the owners of the New England Patriots and secretly obtained one million N95 masks from China using the team’s jet.

In early April, after the Trump administration brushed aside New York Gov. Andrew Cuomo’s appeals for ventilators, Kate Brown, the governor of Oregon, shipped 140 of the breathing devices to help New York blunt COVID-19. China chipped in with another 1,000. Weeks later, Cuomo sent 400 ventilators to Massachusetts after its governor, Charlie Baker, came close to a public meltdown over federal interference with his efforts to buy medical supplies. And in Illinois, fearing that federal officials would cart off his state’s personal protective equipment order, Gov. J.B. Pritzker arranged a secret private “airlift” of medical supplies.

The coronavirus pandemic and President Trump’s failure to mount the barest semblance of a response set into motion a chilling, new dynamic: governors resorting to secrecy and subterfuge as they beg and barter their way around the world for medical supplies and equipment to treat the dying and at-risk. During national emergencies and disasters, Americans have long looked to the federal government to convene experts, deploy workers and materiel, dispense clear information—and provide the massive amounts of financial assistance to states, localities, and individuals, for the elemental reason that it is the only entity that can.

Instead, President Trump has refused to bring to bear the full power of the executive branch to combat the crisis through tools like the Defense Production Act. To the contrary, he has employed executive agencies like FEMA to bully states desperately seeking work-arounds to deal with shortages amid the president’s dereliction of duty.

In a complete reversal of what has long been the normal crisis or wartime dynamic, action and authority have devolved from the White House to the governor’s mansions during the COVID-19 pandemic. It is the states that have emerged as the counterweight to Trumpian dysfunction, a development that has led Trump to rage against the very people confronting the daily doses of death and despair—and the fallout from his incompetence and indifference.

Reports of the death of federalism, it seems, have been greatly exaggerated.

“This is where the Constitution is showing its advantages in the independence of the states—otherwise you have a situation where the White House is dictating the tune for everybody all the way down,” says Robert Chesney, professor of law at the University of Texas School of Law.

THE TRUMP ADMINISTRATION and Senate Republicans appear strangely enamored of a bygone era when the federal government didn’t do much but watch states squabble—a problem that was apparent to the nation’s founders soon after the Revolution. As the states debated a new order to replace the Articles of Confederation, Alexander Hamilton proposed investing authority in stronger executive administration for a simple reason: “A feeble Executive implies a feeble execution of the government,” he wrote in Federalist 70. “A feeble execution is but another phrase for a bad execution; and a government ill-executed, whatever it may be in theory, must be, in practice, a bad government.”

By that standard, the Trump administration, 243 years later, is the ne plus ultra of bad government, its inability and reluctance to rely on science and act accordingly having contributed to the deaths of tens of thousands of Americans. Trump’s failure to establish a national production and procurement program for protective equipment is bad enough; when compounded by his administration’s efforts to actually thwart the states from getting such equipment, it is almost incomprehensible.

“The man is emotionally and professionally not capable of handling a pandemic crisis of this order,” Terry McAuliffe, the former Virginia governor, told the Prospect. “He just doesn’t have it in him.”

Trump’s failure to fully utilize the Defense Production Act to compel manufacturers to produce medical goods in short supply has led governors to blast the absence of a coordinated national strategy to fight the disease. “It’s one thing to say that the federal government has a plan that some states may disagree with,” says Justin Levitt, a professor of constitutional law at Loyola Law School in Los Angeles. “It’s an entirely different thing to say we have no idea what the federal plan is, we would just like there to be one, then we can figure out whether we agree with it.”

The Trump administration’s deficient response to the pandemic and its obstruction of state efforts to respond to it have both involved the Federal Emergency Management Agency (FEMA). The deficiencies are partly due to the agency’s weakening. In the wake of the 9/11 attacks, FEMA was transformed from an independent agency with Cabinet status into one part of the mammoth Department of Homeland Security, where counterterrorism and, since Trump’s ascent, immigration enforcement take priority over natural disasters. Two years ago, his administration transferred $10 million from the agency to fund ICE detention operations. Last August, Trump pulled millions more from the agency’s disaster relief efforts to fund ICE’s—and his—ongoing war on immigrants.

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The agency’s normal purview has been single-state and regional natural disasters, the responses to which characteristically last weeks, not months. It was the Department of Health and Human Services and the Centers for Disease Control and Prevention, not FEMA, that managed the H1N1 influenza outbreak in 2009. Pandemics and public-health crises more broadly are out of FEMA’s realm.

“FEMA was not created to manage an event like this,” says Samantha Montano, a visiting professor of emergency management at the University of Nebraska Omaha. “They did not have the resources, the staff, or the authority, really, to be in a position to manage a pandemic that is affecting the entire country.”

But as the pandemic crisis intensified in mid-March, the administration shifted responsibility for state-level coordination of the national response from HHS to FEMA. The move forced the agency to scale up from more localized ways of operating in states and smaller regions to providing funding, health and safety personnel, and medical supplies to every state and territory—whereupon FEMA’s emergency management mission collided with Trump’s brawls with governors.

Almost immediately, FEMA ran into trouble “coordinating” the distribution of medical supplies to states, with the agency stepping into the role of an enforcer in a grand scheme to compel governors to genuflect to Trump. In Maryland, Republican Gov. Larry Hogan and his wife Yumi Hogan managed to procure a $9 million shipment of 500,000 masks for state residents from her native South Korea. Hogan knew that federal officials had intercepted Massachusetts-bound shipments of masks at the Port of New York, forcing Gov. Charlie Baker to scramble for other sources, and Sen. Elizabeth Warren to fire off a letter of protest to FEMA. Lest such mischief befall Maryland, Hogan made sure that the plane carrying his state’s shipment landed at a state facility—the Baltimore-Washington International Airport, where the state police and the Maryland National Guard greeted it. The shipment is still being guarded at an unrevealed location.

In Colorado, Democratic Gov. Jared Polis suffered through a fraught episode designed to burnish a Republican’s reputation. After Sen. Cory Gardner, a Republican battling to keep his seat in November’s election, requested Trump’s assistance in securing ventilators, 100 of the precious devices were very publicly sent his way, enabling him to claim credit. When Polis ordered 500 such devices from a private vendor, however, he ended up with none, as FEMA swooped in and claimed them all. (In response to states’ objections, FEMA has said, “Priority rated [Defense Production Act] orders do not create a situation of ‘outbidding;’ rather, it puts the federal government requirement to the ‘front of the line’ for fulfillment ahead of other orders.”)

Trump similarly helped out Arizona Sen. Martha McSally, another Republican in need of an election year boost, by sending out 100 ventilators that she personally delivered to a Flagstaff medical center, enabling her to get the photo op and whatever acclaim came with it.

By doing Trump’s bidding, says Loyola Law’s Levitt, FEMA’s distinctive contribution has been “not just lack of guidance but active interference. It’s the injection of chaos without any real idea of how or where that chaos will manifest. The states had to step up.”

MOST POLLS SHOW that overwhelming majorities of Americans back their governors, while the president’s support hovers in his customary low-to-mid-40s percentiles. His public calls for rebellion in Virginia, Michigan, and Minnesota—not to mention his recommendations for injecting disinfectant—have drawn widespread condemnation and ridicule.

Some governors, by contrast, have never been so popular. Ohio’s Mike DeWine, the Republican governor and early social-distancing advocate, has seen a boost in his support, while Democrats Andrew Cuomo, Jay Inslee of Washington, Gretchen Whitmer of Michigan, and Gavin Newsom of California have won national attention through a combination of their own aggressive actions to curtail the pandemic, Trump’s attacks on them, and their pushback against his bullying.

In the absence of sane federal policy, moreover, these and other governors have begun working with their neighbors. To devise a regional blueprint to monitor health outcomes and reopen their economies with input from scientists and public-health officials, California, Oregon, and Washington established the Western States Pact in mid-April; Nevada and Colorado have also signed on. The hardest-hit Northeastern states, New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, and Delaware, followed suit, as did the Midwestern states of Illinois, Indiana, Kentucky, Ohio, Michigan, Minnesota, and Wisconsin.

States have established compacts before, on issues ranging from criminal justice to the environment and transportation. But there is likely no historical precedent for states “banding together in the face of inaction by the federal government,” according to constitutional law professor Annette Gordon-Reed of Harvard Law. “This situation is not like the drivers of the typical interstate compacts,” Gordon-Reed says. “This is different, as an acute health crisis in which time is of the essence and could have been ameliorated with a coordinated effort.”

In the midst of the pandemic, these ties foster better coordination and distribution of medical resources, personnel, and other needs. The groupings can also facilitate travel and transportation decision-making for states with strong commuting ties, such as Kentucky and Ohio, and New York, New Jersey, and Connecticut. They can also serve as mutual defense pacts against executive branch overreach. When the president tried to assert “total authority” over state reopenings, he retreated from the comments after sustained criticism—as he frequently does.

There is likely no historical precedent for states “banding together in the face of inaction by the federal government.”

States also continue to benefit from a long-standing mutual-aid agreement, the Emergency Management Assistance Compact, or EMAC. The compact is activated during disasters after a gubernatorial declaration of emergency sets in motion the deployment of National Guard units and a roster of medical, public-health, and law enforcement mobilizations. Membership spans all 50 states, the District of Columbia, Puerto Rico, and several territories. In early April, California loaned 500 ventilators to New York, New Jersey, Illinois, Maryland, Delaware, Nevada, and the District of Columbia through the mechanism of the compact.

But EMAC has provided limited benefits during the pandemic. While a boon to states during natural disasters, it can’t provide that much when those disasters are nationwide, affecting all 50 states and the territories. At such times, supplies and personnel that can be deployed elsewhere are in short supply.

THE CORONAVIRUS PANDEMIC has not only widened the gap between the federal government and the states; it has also enlarged the rift between a number of states and their cities. Republican governors and legislatures accustomed to overturning local ordinances in blue cities are now wielding their preemption powers against local leaders who insist on aligning reopening decisions with public-health advice. When Republican Gov. Brian Kemp of Georgia decreed the reopening of businesses like hair salons, barbershops, and gyms, Democratic Mayors Keisha Lance Bottoms of Atlanta and Van Johnson of Savannah vociferously objected.

But reopening poses hazards in a wide range of localities, and Kemp also ran up against mayors in rural tourist towns who are not eager to see asymptomatic contagion-bearing fellow citizens descend on areas that are ill-equipped to handle a rise in hospitalizations where such facilities can barely handle routine caseloads.

Kemp isn’t the only Republican governor to face pushback from conservative—indeed, Republican—mayors. By the order (or lack thereof) of Gov. Kevin Stitt, Oklahoma was one of the handful of states that didn’t issue any mandates for sheltering in place or social distancing, and Stitt brought down the wrath of the Twitterverse on himself by flouting social distancing at a jam-packed restaurant. And not just the Twitterverse: Tulsa’s Republican Mayor G.T. Bynum took to the pages of The New York Times to explain his carefully considered reasons for issuing local stay-at-home orders, while the Republican mayor of Oklahoma City, David Holt, issued social-distancing orders, too.

The loudest advocate for reopening business, and the loudest critic of Democratic governors who refuse to do so in the absence of data showing it’s safe, is, of course, Trump. He has endorsed noisy and, in some cases, armed protests against state shelter-in-place and social-distancing policies. For governors who base reopening decisions on science and public-health data, Trump’s demagoguery is doubly dangerous—mobilizing the potentially violent far right and threatening a second-wave return of COVID-19.

Grim economic outlooks complicate the reopening calculus for states and localities that want to maintain strict social-distancing regimes. Though polling shows clear public opposition to lifting the lockdown and distancing policies until it’s proven to be safe, the government has yet to provide sufficient assistance to the record number of Americans currently without work, with survival needs that depend on income as well as health. Moreover, some Americans who’ve endured multiple months of stay-at-home orders are visibly resisting “flattening the curve” exhortations. Beaches are filling up in warmer climes like Southern California, much to the dismay of Gov. Newsom, who still wants people to stay home.

Rather than a respite from infection and death before fall flu and election seasons, the country may see more infections in the places that insisted on being more social. In a perverse way, new rounds of exposure and pandemic that defy all the promises made by the charlatan-in-chief may yet save the Republic by persuading the electorate to oust him in November. The pandemic has provided stark reminders of the essential work that federal, state, and local governments perform, or should perform—work that many voters forgot about after decades of anti-government rhetoric.

These reminders might attenuate the risk “that people will lose faith in the capacity of the national government to handle national crises,” says Gordon-Reed. “There are people who wish that faith to die; but that attitude should not prevail.” During the pandemic, a number of states have stepped into the breach created by Trump’s malfeasance, but the need for a national government that America can rely on—and in which Americans can believe—is stronger than ever.